United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT (Dkt. 37) AND DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT (Dkt. 38)
A. GOLDSMITH United States District Judge
a disability discrimination, retaliation, and hostile work
environment case brought under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e-2 et
seq., and Michigan's Persons with Disabilities Civil
Rights Act (“PWDCRA”), Mich. Comp. Laws §
37.1101 et seq.. Plaintiff also alleges negligent
infliction of emotional distress under Michigan law. For the
reasons set forth below, Defendant's motion for summary
judgment (Dkt. 37) is granted, and Plaintiff's
cross-motion for summary judgment (Dkt. 38) is denied.
2011, Plaintiff Frederick Peoples began working for Defendant
FCA US, LLC (“Chrysler”) in the chassis
department of the Sterling Heights Assembly Plant
(“SHAP”) in Sterling Heights, Michigan.
See Pl. Statement of Material Facts
(“SMF”) ¶ 1, Pl. Br. at 7. In August 2011,
Peoples complained to his superiors that the rotation
schedule was not being observed, and management agreed.
Id. ¶¶ 3-4. According to Peoples, this
complaint led to a confrontation with a coworker on August
15, 2011. Id. ¶ 6. Peoples claims that the
co-worker initiated the confrontation. See Pl. Dep.
Tr. at 25:7-9 (Dkt. 37-2). Chrysler investigated the
incident, and no one was disciplined. See Def. SMF
a back injury, Peoples missed work from October 14, 2011 to
January 4, 2012. Id. ¶ 4. Peoples then worked
for two weeks, disagreed that his new duties complied with
his new restrictions, and went back on approved medical leave
from January 18, 2012, through April 9, 2012. Id.
7, 2012, Peoples was involved in another interpersonal
confrontation, again based upon rotation schedules.
Id. ¶ 6. Peoples claims that his co-workers
were the aggressors. See Pl. Resp. at 8 (Dkt. 42)
(citing Pl. Dep. Tr. at 119-121). This confrontation led to
Peoples being taken to the plant medical office. Id.
Subsequently, Peoples's physicians diagnosed him with
post-traumatic stress disorder. See Pl. SMF ¶
64 (citing 7/10/2012 Diagnosis, Ex. L to Pl. Mot. (Dkt.
39-12)). On the basis of this diagnosis, Peoples did not
return to work until February 18, 2013. Id. ¶
70; Def. SMF ¶ 8.
18, 2012, Peoples filed an EEOC charge in connection with the
August 2011 and May 2012 disputes, alleging race and
disability discrimination, as well as retaliation.
See Def. SMF ¶ 25; see also 2012 EEOC
Charge, Ex. Z to Def. Mot. (Dkt. 37-27). Peoples thereafter
received a Right to Sue letter dated February 19, 2013. Def.
SMF ¶ 25; see also 2/19/2013 Right to Sue
Letter, Ex. AA to Def. Mot. (Dkt. 37-28). He had 90 days to
file suit from that point, see 2/19/2013 Right to
Sue Letter, but he did not file within that timeframe.
Plaintiff was on leave from May 2012 to February 2013, he was
sent for an independent medical examination
(“IME”) by Sedgwick, the company responsible for
overseeing disability and medical leave requests for
Chrysler. Def. SMF ¶ 11. The IME report recommended that
Peoples be granted an accommodation in the form of
“permanent transfer to a different Chrysler
plant” other than SHAP. Id.; see also
Wolf IME, Ex. L to Def. Mot. (Dkt. 37-13). In a letter dated
January 15, 2013, Chrysler offered Peoples two reassignment
options: (i) the “paint shop, ” which was still
on the SHAP campus, but in a separate building; or (ii) the
Warren truck assembly plant. See Def. SMF ¶ 12;
see also 1/15/2013 Letter, Ex. M to Def. Mot. (Dkt.
37-14). Peoples selected the paint shop position. Def. SMF
¶ 13 (citing 2/6/2013 Letter, Ex. G to Def. Mot. (Dkt.
Peoples returned to work on February 18, 2013, he reported to
the paint shop. Id. ¶ 13. He was again injured
on March 9, 2013, allegedly due to Chrysler's rotation
violations, necessitating more leave time. Id.
¶ 14; Pl. SMF ¶ 73.
on this stretch of medical leave, Peoples contends that he
was sent for another IME on February 4, 2014, this time to
address his mental health. See Pl. SMF ¶¶
73-77. He returned to work in March 2014. Def. SMF ¶ 15.
He was again injured on July 2, 2014, and he went on medical
leave. Id. ¶ 16.
returned to work on October 14 or 15, 2014. Id.
¶ 17 (October 15); Pl. SMF ¶ 78 (October 14). For
four days, Peoples trained on a stationary car door to learn
the position of paint seal operator, after which, on October
21, 2014, he was directed to perform his tasks on the
assembly line. Def. SMF ¶ 17. In uncertain terms,
Peoples claims that this work violated his medical
restrictions and that he told Chrysler so. See Pl.
Resp. at 9 (citing Pl. Dep. Tr. at 178-183). The plant
doctor, however, had determined that the job did not violate
Peoples's restrictions. See Devine Dep. Tr., Ex.
K to Pl. Mot., at 125:9-15 (Dkt. 39-11) (“Dr. McCormick
determined that the operation did not violate his
restrictions . . . .”). Peoples could not keep up with
the line's pace, the line had to be shut down, and he was
disciplined via written warning. Def. SMF ¶ 17; Pl. SMF
next day, on October 22, 2014, Peoples went to the plant
medical office to complain that he was physically unable to
perform the functions of a paint seal operator. Def. SMF
¶¶ 19-20. When a doctor was not immediately
available, Peoples called himself an ambulance. Id.;
Pl. SMF ¶ 83. That trip to the hospital resulted in a
note excusing Peoples from work for October 22-23. Def. SMF
¶ 19; Pl. SMF ¶ 84. Also on October 22, 2014, after
Peoples left work, the plant medical doctor, Peoples's
supervisor, plant HR staff, and UAW representatives visited
Peoples's work station to evaluate whether a paint seal
operator could perform his assigned tasks within
Peoples's bending and lifting restrictions; the plant
doctor determined that he could do so. Def. SMF ¶ 20.
October 24, 2014, Peoples was sent a “5-day letter,
” stating that he had been off work since “July
2, 2014” [sic]; it stated that Peoples's absence
“was established for a certain period, but has not been
currently justified” and asked him to report to
SHAP's HR office by October 31, 2014, “unless on or
before this date the Plant Employment Office receives
satisfactory evidence as to the reason for your
absence.” Id. ¶ 21; Pl. SMF ¶ 85.
The letter warned that failure to provide satisfactory
documentation excusing the absence could result in
termination of seniority. See 10/24/2014 Letter, Ex.
W to Def. Mot. (Dkt. 37-24).
October 29, 2014, in response to the 5-day letter, Peoples
went to HR, which directed him to the plant medical office to
be cleared to work. Def. SMF ¶ 22. Peoples claims that
he gave documentation to the plant medical office that
excused him from work from October 23 through February of
2015, but, in support of this fact, he cites only to an
illegible copy of the doctor's note he claims to have
submitted. See Pl. SMF ¶¶ 86, 89 (citing
identical Exs. I & N to Pl. Mot. (Dkts. 39-9,
39-14). Peoples did not wait to see a doctor as Chrysler
directed he do; rather, he went home and did not return.
See Def. SMF ¶ 22; Pl. SMF ¶¶ 90-91.
On November 13, 2014, after Peoples had been absent from work
for two weeks, Chrysler terminated his employment. Def. SMF
¶ 24; Pl. SMF ¶ 92. “[Chrysler]'s reason
for termination was Plaintiff's failure to properly
comply with the 10/24/2014 5-day letter, and for not being
medically cleared to return to work.” Def. SMF ¶
24; see also Termination Letter, Ex. X to Def. Mot.
(“[Y]our employment will be terminated due to not
following the reinstatement procedure.”) (Dkt. 37-25);
Def. Resp. to 11/20/2014 Termination Grievance, Ex. Y to Def.
Mot. (stating in response to union grievance that Peoples was
terminated because he “did not follow through on 5 Day
letter request and substantiate absences[.] Also not
following management instructions.”) (Dkt. 37-26).
his termination, Peoples filed a second EEOC charge, dated
February 26, 2015, alleging disability discrimination and
retaliation beginning on October 22, 2014. See EEOC
Charge, Ex. BB to Def. Mot. (Dkt. 37-29). The EEOC dismissed
the 2015 charge and issued a right-to-sue letter on August
13, 2015. See 8/13/2015 Letter, Ex. CC to Def. Mot.
(Dkt. 37-30). Peoples filed his complaint on November 14,
2015 (Dkt. 1).
STANDARD OF DECISION
motion for summary judgment, “facts must be viewed in
the light most favorable to the nonmoving party only if there
is a ‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587
Plaintiff's Proffered Record Evidence
Peoples's version of the facts is “supported”
only by unsworn letters he claims he provided to Chrysler
contemporaneously with the events underlying this case.
See, e.g., Pl. SMF ¶ 2 (citing 8/16/2011
Letter, Ex. A to Pl. Mot. (Dkt. 39-1)). Chrysler takes
special issue with this, including in its response a
“Rule 56(c)(2) Objection” that highlights the
letters' character as unsworn hearsay. See Def.
Resp. to Pl. Mot. at 2 (Dkt. 41). Chrysler also lists each
paragraph of Peoples's Statement of Material Facts that
contains no citation to the record whatsoever. See
in his reply brief, attempts to retroactively attach
“id.” citations to the factual
assertions having no citation to the record. See Pl.
Reply at 1 (Dkt. 47). The Court declines to constructively amend
Peoples's brief in this way. He also claims that his
letters fall under three hearsay exceptions: (i) admissions
of a party-opponent; (ii) “evidence of Defendant's
knowledge, because Plaintiff sent the letters to Defendant to
put Defendant on notice regarding his experience at
FCA”; and (iii) to demonstrate Chrysler's knowledge
of Peoples's complaints “when it made decisions
concerning whether it provided Plaintiff with an
accommodation and knowledge that its employees had a pattern
of retaliating” against Peoples for requesting
accommodations. Id. No cases are cited, and Peoples
only makes a blanket reference to Federal Rule of Evidence
these hearsay exceptions applies. First, the party-opponent
admission exception does not apply, because Peoples is not
his own opponent; he cannot invoke Federal Rule of Evidence
801(d)(2) to admit his own statements. Second, Peoples's
arguments that the letters are evidence of Chrysler's
“knowledge, ” and therefore fall outside of the
hearsay rule, requires that they were not offered for the
truth of the matter asserted in the letters. Accordingly,
these unsworn letters will not be considered as evidence of
the facts and events that they describe.
final attempt to admit the contents of the letters is his
claim that the letters “have subsequently been
corroborated by Mark Taylor, Plaintiff's Union
Representative.” Pl. Reply at 3 (citing Aikens Aff.,
Ex. M to Pl. Reply (Dkt. 47-13)). The cited exhibit, however,
proves no such thing. It neither references Peoples's
letters nor refers to any events contained therein, other
than oblique references to the fact that Peoples was
terminated. Furthermore, the beliefs of Mr. Taylor, which are
offered via Plaintiff's counsel's recollection of
their conversation, appear to be hearsay.
this Court declines to consider the inadmissible evidence
that Peoples offered in support of his version of certain
facts, and it declines to consider any factual assertions for
which Peoples did not provide a citation to the record.
See Fed.R.Civ.P. 56(c)(3) (“The court need
consider only the cited materials . . . .”).
PWDCRA substantially mirrors the ADA, and resolution of a
plaintiff's ADA claim will generally, though not always,
resolve the plaintiff's PWDCRA claim.” Donald
v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir. 2012). When
neither party provides a reason to treat the ADA and PWDCRA
claims differently, courts tend to apply ADA jurisprudence.
See, e.g., id. (“[Plaintiff] provides
no argument as to why we should treat the claims separately,
nor does our review indicate as much.”). In the context
of the disability discrimination claims, neither party
provides an argument that the claims should be analyzed
separately, and this Court will apply ADA jurisprudence to
makes it unlawful for an employer to “discriminate
against a qualified individual on the basis of a
disability.” 42 U.S.C. § 12112(a). The statute
defines “discriminate” to include “not
making reasonable accommodation to the known physical . . .
limitations of an otherwise qualified individual with a
disability” unless the employer “can demonstrate
that the accommodation would impose an undue hardship.”
Id. § 12112(b)(5)(A). To provide a reasonable
accommodation, an employer may be required to modify the
responsibilities of a disabled employee's existing job or
transfer the employee to a vacant position with different
responsibilities. See 29 C.F.R. §
1630.2(o); Kleiber v. Honda of Am. Mfg.,
485 F.3d 862, 870 (6th Cir. 2007). If a plaintiff's
requested accommodation is a transfer to a different
position, “employers have a duty to locate [a] suitable
position . . . .” Kleiber, 485 F.3d at 870.
“Nonetheless, to overcome summary judgment, the
plaintiff generally must identify the specific job he seeks
and demonstrate that he is qualified for that
recover on a claim for discrimination under the ADA, a
plaintiff must show that he or she (1) is disabled, (2) [is]
otherwise qualified to perform the essential functions of the
position, with or without accommodation, and (3) suffered an
adverse employment action because of his or her
disability.” Ferrari v. Ford Motor Co., 826
F.3d 885, 891 (6th Cir. 2016) (citing Monette v. Elec.
Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)).
“A plaintiff may do so by introducing direct evidence
of discrimination, including evidence that the employer
relied upon the plaintiff's disability in making its
employment decision, or by introducing indirect evidence of
discrimination.” Id. Chrysler argues that the
indirect-evidence framework is sufficient to dispose of
Peoples's claims, see Def. Br. at 12-13, and
Peoples did not object or otherwise point to any direct
evidence of discrimination, see generally Pl. Resp.
See, e.g., Jenkins v. Plumbers & Pipefitters
Union Local No. 614, 971 F.Supp.2d 737, 745 (W.D. Tenn.
2013) (“Because [the plaintiff] does not allege direct
evidence, the Court analyzes his objections under the
McDonnell Douglas burden-shifting
indirect method under the ADA adapts the burden-shifting
framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), a Title VII case.
Ferrari, 826 F.3d at 891. To proceed on a claim for
disability discrimination under the indirect method, Peoples
must first establish a prima facie case of discrimination by
showing that (i) he is disabled; (ii) he is otherwise
qualified for the position, with or without reasonable
accommodation; (iii) he suffered an adverse employment
decision; (iv) the employer knew or had reason to know of his
disability; and (v) the position remained open while the
employer sought other applicants or the disabled individual
was replaced. Id. at 891-892.
Prima Facie Case
argues that Peoples's allegations and evidence cannot
suffice to establish a prima facie case of disability
discrimination under the ADA and the PWDCRA. Specifically,
argues Chrysler, Peoples's decision to leave unexcused
means that he is not “qualified, ” which is a
necessary element of a prima facie case. See Def.
Br. at 14 (citing Gantt v. Wilson Sporting Goods,
143 F.3d 1042 (6th Cir. 1998)).
absences, however, do not inform whether he was
“qualified” as that term is used in the
McDonnel Douglas burden-shifting framework. A court
“may not consider the employer's alleged
non-discriminatory reasons for taking an adverse employment
action when analyzing the prima facie case. To do so would
bypass the burden-shifting analysis and deprive the plaintiff
of the opportunity to show that the non-discriminatory reason
was in actuality a pretext designed to mask
discrimination.” Hale v. ABF Freight Sys.,
Inc., 503 F. App'x 323, 333 (6th Cir. 2012).
“[T]he inquiry should focus on criteria such as the
plaintiff's education, experience in the relevant
industry, and demonstrated possession of the required general
Chrysler's cited case, Gantt, does state that
“[a]n employee who cannot meet the attendance
requirements of the job at issue cannot be considered a
‘qualified' individual protected by the ADA,
” 143 F.3d at 1047, that case is distinguishable
because of the nature of the Gantt plaintiff's
absence. She was not unqualified because of isolated or
intermittent finite absences; rather, she was deemed
unqualified because (i) her doctor had not released her to
return to work; and (ii) after an entire year's absence,
the plaintiff gave no indication whether she ever
could return to work. Id. Here, on the other hand,
Peoples claims that he would have been able to return to work
in roughly four months.
unexcused failure to appear for work, however, does establish
a legitimate, non-discriminatory reason for terminating an
employee. See, e.g., Burdett-Foster v. Blue
Cross Blue Shield of Mich., 574 F. App'x 672, 681
(6th Cir. 2014). Here, Peoples had a note from his physician
excusing him from work through October 23, and he did not
show up for work on October 24. Chrysler then gave Peoples a
letter listing tasks he would have to perform in order to
keep his job, and Chrysler claims he did not perform them.
This suffices to shift the burden back to Peoples to show
prove pretext, a plaintiff must show “that the
proffered reason either (1) has no basis in fact, (2) was not
the actual reason, or (3) is insufficient to explain the
employer's action.” Id. (quoting Risch
v. Royal Oak Police Dep't, 581 F.3d 383, 391 (6th
Cir. 2009)). “[The first and third] types of rebuttals
are direct attacks on the credibility of the employer's
proffered motivation for firing plaintiff and, if shown,
provide an evidentiary basis for what the Supreme Court has
termed ‘a suspicion of mendacity.'”
Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078,
1084 (6th Cir. 1994) (quoting St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 510-511 (1993)), overruled
in part on other grounds by Geiger v. Tower Auto., 579
F.3d 614 (6th Cir. 2009). “[S]uch a showing permits,
but does not require, the factfinder to infer illegal
discrimination from the plaintiff's prima facie
case.” Id. “[E]vidence within the first
and third categories is ‘easily
recognizable.'” Smith v. Hinkle Mfg.,
Inc., 36 F. App'x 825, 829 (6th Cir. 2002) (quoting
Manzer, 29 F.3d at 1084). Peoples does not identify
which basis for proving pretext he is using, but his claim
that he complied with the strictures of the 5-day letter
invokes the third method of proving pretext. The third way
of showing pretext - that the employer's proffered
reasons were insufficient to motivate the termination -
“usually consists of evidence that other
employees, particularly employees not in the protected class,
were not fired even though they engaged in conduct